Can I Change Attorneys Once Divorce Proceedings Are Underway?
A qualified divorce attorney will regularly communicate with you, empathize with you and give your case the attention and seriousness it deserves.
Being in the middle of a divorce can be a stressful and emotional experience. But things can get even more complicated and confusing if you’re dissatisfied with your attorney. If this happens, you’ll likely find yourself asking: “Can I change my attorney once divorce proceedings are underway?”
Figuring Out the Problem with Your Divorce Attorney
Before you do anything rash, it helps to identify the problem with your divorce attorney. Why are you frustrated? What exactly is the problem?
Is your case going too slowly? Are you not getting the results you expected? Are you not getting any results at all?
Maybe the problem is that you don’t know whether you are getting results or not because your divorce lawyer never talks to you. Or, maybe you think your lawyer is charging too much.
Whatever your issue is, if you want to address it effectively, you have to start by identifying it correctly.
Time for a Reality Check
After you know what the problem is, your next step is to figure out the source of the problem. Is your divorce attorney the problem? Or, is it you? (Ouch! Hang with me here. You may not want to hear this, but if you’re willing to be just a little bit self-reflective, it could save you thousands of dollars.)
The divorce system, as a whole, doesn’t work the way most people think it does. You can’t just waltz into a court room and tell the judge your story the way you would tell it to a friend in the bar.
Unlike the divorce court on T.V., people rarely get to speak to the judge, and only completely uncontested cases are resolved in 30 minutes or less. Cases often take months or years to wind their way through the system. In the meantime, lawyers go to court again and again in the same case, attending countless status conferences, hearings, and pre-trial conferences.
It’s frustrating! So, when you’re trying to figure out if the problem in your divorce is your divorce lawyer, you have to start by assessing your own expectations. Is it realistic for you to have believed that your case would be done by now? Are your settlement demands out of line? Do you expect your lawyer to win every hearing?
If your expectations are unrealistic, then changing divorce attorneys is not going to solve your problem. It’s only going to cost you more money, while leaving you just as frustrated as you are now.
How Do You Know What You Don’t Know?
If you don’t know whether or not your expectations are realistic or not, go to another divorce lawyer and get a second opinion. You may have to pay for a consultation, but even if you do, it will be money well spent. If you are a celebrity, or you have a lot of money, any divorce lawyer you go to for a second opinion may be salivating at the chance to take over your case. If the lawyer you go to for a second opinion seems a little too critical of your current attorney, or seems to be promising you too much, take a step back.
I know that talking to yet a third attorney is the last thing you probably want to do, but under these circumstances, it may be worth it!)
What if Your Divorce Expectations are NOT the Problem?
Once you’ve ruled out your own expectations as being the source of your problem, the next step is to take a good, hard look at your attorney.
If your attorney is doing any of these things, then changing attorneys during your divorce might make sense:
• Not returning your phone calls or voice mails within a couple of days, or ever!
• Consistently missing court appearances.
• Not letting you know what is happening in your case.
• Telling you s/he will do something and then not doing it.
• Yelling at you, calling you names, insulting you, or making you cry.
• Refusing to send you a bill so you can see how your money is being spent (or how much you owe!).
• Doing something else that causes you to lose confidence in your attorney.
You might also want to change attorneys during your divorce if you and your attorney no longer see eye-to-eye on your divorce strategy, or if you just don’t trust your attorney any more.
Remember though, no matter why you change attorneys during your divorce, doing so comes at a price.
How to Find the Right Divorce Attorney
Experience and good reputation are the two most important factors to consider when choosing a divorce attorney.
Make sure your new attorney is reputable, experienced, and has handled cases similar to yours. Having an attorney with several wins under their belt will make you feel comfortable and confident about your case’s progress.
Once you’ve settled on a new divorce attorney, ensure to go over your case with them in detail. Be open and answer all their questions truthfully.
The decision to change your representation can be difficult to make, but a switch may ultimately be better for your interests and the resolution of your case. While going through the emotional ups and downs of a divorce and coping with the loss of control that this process brings to your life, it can oftentimes be difficult to make key decisions about your case. Still, before choosing to take the gloves off and bring in the pit bull to handle your divorce, consider these guidelines relating to the when, why, and how of switching your attorney. Whenever, wherever. You have the right to change your attorney at virtually any point during your divorce proceedings. Your retainer agreement does not require you to keep your present attorney indefinitely especially when you don’t think it is working out. The rare instances where you might be prohibited from changing your counsel are if you are close to trial or in the middle of a trial. In that situation, you must get the approval of the judge in order to ensure the change will not delay the trial or cause an unfair disadvantage to your spouse.
What’s my motivation?
Before deciding to make a change, however, it is important to ask yourself why you think this would be a good decision and what dissatisfies you about your current attorney. There are plenty of reasons why clients choose to switch their attorneys. The attorney and client may disagree on how the case should be handled. The attorney might not be keeping costs and fees reasonably controlled. The attorney might not be keeping the client well informed on the progress of the case, nor returning phone calls and letters in a timely manner and paying enough attention to the case in general. Personality clashes may simply make doing business with the attorney too unpleasant to be productive. If the attorney’s style is too aggressive or not as aggressive as the client would like, a change may be warranted. If your attorney appears disorganized or overcommitted and cannot give your case the attention needed, a change may be due.
What’s my need?
If your attorney is out of his league in comparison with the other attorney, it may pay to upgrade and hire an attorney with more experience or specialized skills. This may involve paying a higher hourly rate, but in many cases, you get what you pay for, and a high quality attorney can often get the job done more effectively. Mistakes made can be extremely costly, both in the short and long term. If you need a real “fighter” but choose an attorney who prefers to settle, you will feel unrepresented. If you want to settle, but choose an attorney who prefers not to explore settlement, you may feel betrayed and abused (fighting can be expensive and should only be resorted to when other options are not feasible.) Either way, it is you, and not the attorney, who has to live with the end result.
If you know your divorce is likely to end up in court, choose an attorney who is an able litigator who can take you through the whole process competently. You need someone who is well prepared, able to negotiate where possible, but able to go the whole way if needed. Good, sound judgment and knowing when to fight and when to settle is probably the most important skill that your attorney should possess.
If you are uneasy because there is no synergy and trust with your attorney, you need to talk about your concerns openly with your attorney, and if things don’t improve, move on. If you are reluctant to change attorneys because you have invested so much with your current attorney, remember that bad representation is often more expensive in the long run. If you are afraid of hurting an attorney’s feelings, don’t be. Attorneys are professionals who understand that not every combination of client/attorney is a good one.
Whatever the reasons you have for concern, consider talking them over with your attorney to see whether or not the issues can be resolved. Try to be realistic about your own demands and contribution to the problem. Are you acting irrationally and expecting your attorney to perform miracles and achieve results that no attorney could be expected to obtain? Beware of listening to your spouse who may try to persuade you to ditch a very competent attorney under the guise that the case would be settled quickly without them. It’s tempting to give up the struggle and try to settle with your spouse without your attorney, but if your spouse is more powerful and a better negotiator you could regret that decision.
How it’s done
Once you make the decision to change attorneys, you need to contact your current attorney and notify their office that you have appointed another attorney or have your new attorney do that on your behalf. Your file needs to be transferred over to the new attorney’s office. Your new attorney will prepare a document called a Substitution of Counsel. This document officially informs the court and the other parties that you have a new attorney and requires signatures from your new attorney, and the previous attorney.
If there’s trouble
While most attorneys will sign the Substitution of Counsel and send your new attorney your files, on occasion some attorneys may not cooperate. This may be because you still owe money or due to the attorney’s tardiness. Your prior counsel may not prejudice your case by holding your file if work needs to be done.
It’s in your hands
The decision to switch attorneys can be a difficult one, and it is important to make sure you are doing it for the right reasons. You should carefully interview and scrutinize a substitute attorney because switching attorneys numerous times can make reputable attorneys think twice about accepting your case. Avoid creating the impression to new counsel and the Court that you are impossible to work with. Feel free to obtain a second opinion if you are in doubt. It’s your right and you need to do what is best for your situation, your protection, and your future.
You walk out of the court room with a sinking feeling in the pit of your stomach. Your case just got continued for what seems like the hundredth time. It’s been dragging on for well over a year. Your divorce lawyer has doesn’t seem to care. He told you not to worry. Now you’re wondering whether a different attorney might move things along more quickly. Does it make sense to change attorneys during your divorce?
What Happens if You Change Attorneys During Your Divorce?
Just because you’ve determined that it’s time for you and your divorce attorney to part ways, that doesn’t mean that doing so will be easy – or cheap!
If your case is in court, you may need permission from the judge to fire your attorney. While most judges will readily grant your request, if you’ve got a trial date coming up soon or, worse yet, if you’re in the middle of a trial, the judge may be reluctant to allow you to let your divorce lawyer go.
Before allowing you to dump your divorce lawyer, the judge may require you to agree that your trial will proceed as scheduled, even if you don’t have a new lawyer by the trial date. While you may think that’s not a problem, a lot of divorce attorneys will be unwilling to take over a case that is going to trial in a week or two. So, unless you’re prepared to try your case yourself (which is NEVER a good idea!) changing your divorce attorney at that point may be rough.
Even if nothing is happening in your divorce case at the moment, changing divorce lawyers mid-stream will cost you money. How much it costs will depend on how complicated your case is and how close you are to trial or a major hearing.
The Cost of Changing Attorneys During Divorce
Your new lawyer will have to review everything that has gone on in your case up to that point. S/he will have to go through all of your financial documents, and your spouse’s financial documents. Of course, you will have to pay your new lawyer to do all of that.
If your divorce case has only been pending for a few months then switching lawyers may not cost you all that much. The same thing is true if your divorce is relatively simple. But if you and your spouse have been locked in battle for years, or your case is complex, then paying a new divorce attorney to spend days going through your file can be expensive.
Remember, too, that your new attorney is probably going to want a retainer before taking your case. Depending upon your case, that retainer could range from a few thousand dollars, to tens of thousands of dollars. If you don’t have that kind of money to give a new attorney, you may have trouble hiring one.
Free Initial Consultation with Lawyer
It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!
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— Ascent Law (@AscentLaw) November 2, 2022